Bergene

Opinion by Chief Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge WALLACE.

Elizabeth Bergene and her husband, Bradley 1 , appeal the grant of summary judgment in favor of their former employer, the Salt River Project (“SRP”), on her claims of retaliation and sex discrimination in the denial of a promotion and constructive discharge on account of an intolerable work environment. The district court ruled in favor of SRP on the retaliation and discrimination claims on the ground that SRP had offered a non discriminatory reason for denying Elizabeth Bergene a promotion, and Bergene had failed to show that this reason was pretextual. The district court also granted summary judgment for SRP on Bergene’s constructive discharge claim, holding that she had not raised a triable issue of fact as to the presence of intolerable working conditions.

The record, however, contains direct evidence of retaliation, including a threat by a supervisor that Bergene would not be promoted if she held out for too much money in settling an earlier pregnancy discrimination claim. The record also contains substantial circumstantial evidence from which a jury could conclude that she was the…

concurring and dissenting:

I agree with the majority, but only in part. I would reverse the district court’s summary judgment on Bergene’s retaliation and constructive discharge claims but affirm its summary judgment on the sex discrimination claim.

Although I agree with the majority’s result with respect to Bergene’s retaliation claim, I would reverse the district court’s summary judgment on the strength of the direct evidence alone because I have my doubts about whether the circumstantial evidence is sufficiently “specific and substantial” to withstand summary judgment. Godwin v. Hunt Wesson, Inc. 150 F.3d *1145-1149 1217, 1222 (9th Cir.1998) (internal quotation marks omitted). I join the majority’s reasoning on the constructive discharge claim.

I part with the majority, however, on Bergene’s discrimination claim. I would affirm the district court’s summary judgment because, while the reason offered by SRP for failing to promote Bergene may be pretextual, Bergene has failed to raise a triable issue as to whether SRP’s reason was a pretext for sex discrimination.

The majority cites three pieces of circumstantial evidence in support of its conclusion that Bergene has raised a…